KHX v Isle of Wight Council

The statutory removal of limitation for child sexual abuse applies by reference to the act or omission causing the personal injury. It does not extend to distinct physical-abuse allegations merely because they are joined with sexual-abuse allegations in the same proceedings. Those claims remain subject to sections 11 and 33 of the Limitation Act 1980. Under section 33, the court must assess all circumstances and balance prejudice, focusing on the effect of delay on evidence. Here limitation was disapplied for the physical-abuse claim, but both claims were dismissed because the allegations were not proved on the balance of probabilities.

This was a first-instance trial of a claim arising from the claimant's residence in a local-authority children's home in the 1980s. He alleged repeated physical assaults by one care worker and sexual assaults by another. The defendant accepted that the sexual-abuse allegations were within the new sections 11ZA and 11ZB regime of the Limitation Act 1980, but relied on limitation for the physical-abuse allegations and denied both sets of allegations. The court had to determine the applicable limitation regime, the section 33 discretion, proof of liability and, if necessary, damages. The central question was whether the abuse had been proved despite the passage of time.

Disposition. The claim was dismissed. Neither the physical-abuse allegations nor the sexual-abuse allegations were proved on the balance of probabilities.

1. Limitation. Sections 11ZA and 11ZB of the Limitation Act 1980 did not govern the physical-abuse allegations. Section 11ZA(2) imposes cumulative conditions, including that the act or omission causing the personal injuries constituted sexual abuse. The physical allegations concerned analytically distinct conduct by a different alleged tortfeasor. Their inclusion in proceedings also containing sexual-abuse allegations did not satisfy that condition. The physical claim therefore remained subject to sections 11 and 33.
2. Section 33. The section 33 discretion is broad and requires consideration of all the circumstances, including the effect of delay on evidential cogency and the prejudice to each party. The delay was very substantial, memories had faded, records were incomplete and the alleged perpetrator had died. Those matters caused real forensic prejudice. However, the allegations had been reported while he was alive, a police investigation had taken place and substantial documentary and witness evidence remained. It was therefore equitable to disapply limitation.
3. Physical abuse. The court accepted that the claimant had sustained a foot injury and that force had been used during an incident in Sheffield, but the evidence did not establish that the force was unlawful. Material inconsistencies concerning the onset of the alleged abuse and the mechanism of the foot injury undermined confidence in the wider allegations. The unsigned and untested hearsay evidence of the alleged perpetrator was given limited weight under section 4 of the Civil Evidence Act 1995.
4. Sexual abuse. Longstanding disclosures and the absence of obvious embellishment supported the genuineness of the claimant's belief. However, his account concerning Richard Willett was materially inaccurate, the car incident developed in later accounts, and the evidence as a whole did not permit sufficient confidence in his reliability. The defendant's witness was found credible and reliable. The sexual-abuse claim was accordingly dismissed. Quantum did not arise.